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Denials of Petitions for Certiorari

February 18, 2013

Since our last look at denials of petitions for certiorari, the Supreme Court has denied a large number of petitions. Cases the Court decides not to take up may be of interest to practitioners, so we cover them on an irregular basis. Below are several cases the Supreme Court declined to review through February 4, 2013.

S13C0315. MCALISTER v. ABAM-SAMSON

This case arose out of an attorney’s lien, but was decided based on rules related to failure to timely file a record appendix in the Court of Appeals. After a trial court ruling, McAlister filed a notice of appeal on February 17, 2011, which indicated that the parties would file the record on appeal with the Court of Appeals. On August 5, 2011, an intervenor in the underlying case filed a motion to dismiss the appeal due to failure to file a record index. The trial court granted the motion, finding the delay of 55 days unreasonable, caused by McAlister, and inexcusable. McAlister then appealed the order dismissing his appeal.

The Court of Appeals (Dillard, Ellington, Phipps) unanimously affirmed the trial court’s dismissal of the appeal. The Court of Appeals explained that, even though the Code does not include references to a record appendix, there is no conflict between the statute and the rules of the Supreme Court and Court of Appeals. Once McAlister undertook the duty to file a record appendix, he cannot complain about the appeal being dismissed.

The Supreme Court unanimously denied the petition for certiorari on February 4, 2013.

S13C0284. GENERAL PUMP & WELL, INC. v. LAIBE CORPORATION

This case began as a product liability case for breach of warranties, but turns on the question of whether a venue and forum selection clause was enforceable. General Pump and Well sued Laibe, claiming breach of warranty and other claims regarding a water well drilling unit it purchased. General Pump and Well moved to dismiss for improper venue and lack of personal jurisdiction and the trial court denied the motion.

The Court of Appeals (Dillard, Ellington, and Phipps) reversed the trial court’s decision, finding that the contract was applicable in a case of claims for breach of implied warranties because the claims arose from the contractual relationship and not a legal basis. The trial court should have considered the contract. In addition, the forum selection clause in the contract was valid and not the product of bad faith.

The Supreme Court unanimously denied the petition for certiorari on February 4, 2013.

S12C1338. GWINNETT COUNTY v. OLD PEACHTREE PARTNERS, LLC et al.

This case looks primarily at whether a county has to vote separately on a settlement agreement after voting to authorize its attorney to negotiate a settlement. In 2005, Gwinnett County sought to acquire a right of way and easements from property owned by Old Peachtree Partners. In 2007, Old Peachtree executed an option agreement for the county to purchase 1.867 acres for $1.1 million. But before the option was exercised, Old Peachtree learned the county planned to install a main sewer across its property and it refused to proceed with the closing. The County sued for breach of contract and specific performance in early 2008. In mid-2009, the County and Old Peachtree began to discuss settlement. After some back-and-forth, the County Commission authorized the county attorney to make a counter-offer to Old Peachtree, which Old Peachtree accepted. Old Peachtree executed the settlement documents, including a purchase agreement, but on August 4, 2009, the Commission rejected the purchase of property in an open meeting. The County then filed a motion for partial summary judgment in the trial court that its 2007 option agreement was valid and Old Peachtree filed a cross-motion alleging, among other things, that the County breached the 2009 settlement agreement. The trial court denied the motions, finding in part that the 2009 settlement agreement was unenforceable because it was conditioned on approval by the Board at an open meeting.

The Court of Appeals (Boggs, Mikell, Miller) reversed the trial court ruling, finding the 2009 settlement agreement enforceable. The county attorney was authorized by the Commission to make the counter-offer and the acceptance established a contract. The county attorney had authority to act on behalf of the county, even without a public vote on the issue. Finding the 2009 settlement enforceable meant that no other issues remained because that agreement settled the pending claims between the parties.

The Supreme Court of Georgia unanimously denied the County’s petition for certiorari on January 7, 2013.

S12C1320. PETERSON v. REEVES et al.

This case began when a patient sued her psychiatrist for her injuries after the patient attempted suicide. Reeves has a history of mental illness dating back to 2001 and consulted with Peterson from that time forward. In early August 2005, Reeves attempted to jump from a high balcony into an empty swimming pool. She was involuntarily committed to Northwest Georgia Regional Hospital and was discharged to a voluntary treatment facility about two weeks later. Two days later, on August 17, the voluntary home discharged Reeves at her request. A week later, her family brought her to the emergency room again and she was readmitted to the Horizons Crisis Group Home. Peterson saw her on August 26, diagnosed her with serious disorders, and prescribed medication. On August 29, Reeves was discharged from Horizons and on August 31, she poured gasoline over herself and set herself on fire. Reeves and her conservator sued multiple defendants and Peterson moved for summary judgment on the basis that he had no duty to involuntarily commit Reeves. The trial court denied the motion and Peterson applied for an interlocutory appeal, which the Court of Appeals granted.

The Court of Appeals splintered in its decision on the case in a 5-2 vote, with four different opinions written, ultimately affirming the denial of the motion for summary judgment. Judge McFadden wrote the primary opinion, with Judge Phipps concurring in the opinion. Judge Barnes concurred in the judgment only, while Judge Dillard wrote a special concurrence joined by Judge Boggs. Judges Andrews and Mikell both dissented with separate opinions.

Judge McFadden held that the doctor-patient relationship creates a duty that requires that the doctor exercise the applicable degree of care and skill in treatment of the patient. Because a fact issue remained on that point, it is for the jury to decide and summary judgment was correctly denied. Judge Dillard concurred specially to clarify that there is no duty to a mental health professional to involuntarily commit a suicidal patient. The issues of fact remaining to be resolved are whether Peterson breached his duty of care and whether that negligence was a proximate cause of the attempted suicide.

Judge Andrews argued in dissent that Georgia courts have never held a doctor liable for a patient’s injury unless the patient was under the control of the doctor. Judge Mikell would similarly have not found a duty, and also would not have found proximate cause even if a duty existed.

On January 7, 2013, the Supreme Court unanimously denied the petition for certiorari.

S12C1365. RUFF v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA

This case involves payments for a study abroad program, and whether a contract existed between the father who paid for the study abroad and the University of Georgia. John T. Ruff, a lawyer at Kenneth S. Nugent, P.C., has a son who was a student at UGA in 2006. The son applied and was accepted into a study abroad program, but was ultimately unable to go on the study abroad program because he was on probation. Ruff contacted the program coordinator and requested a refund, which was denied, and Ruff sued the Board of Regents. The Board filed a motion for summary judgment, claiming the suit was barred by sovereign immunity and there was no written contract that would waive sovereign immunity. The trial court denied the motion, finding there were questions of material fact and issues of law remaining.

The Court of Appeals (Phipps, Andrews, McFadden) reversed the trial court decision, finding the Board of Regents was entitled to summary judgment. An implied contract is not enough to waive sovereign immunity and none of the documents presented by Ruff were signed by a representative of the Board of Regents or the University of Georgia. This lack of another signature meant there was no intent by the Board of Regents to enter into a contract with Ruff, and thus sovereign immunity was not waived.

On January 7, 2013, the Supreme Court unanimously denied the petition for certiorari.

S12C2037. STEAMBOAT CITY DEVELOPMENT CO., L.P., et al. v. PARK AVENUE BANK

This appeal focuses on the applicability of a forum selection clause in a promissory note. In 2007, Steamboat and Park Avenue Bank (among others) entered into a Loan Agreement for $6.57 million. Steamboat also executed a promissory note with personal guaranties from eight individuals. The Loan Agreement included an exhibit with a forum selection clause for Lowndes County, Georgia. In 2008, an Amended and Restated Promissory Note was executed and provides that a suit may be brought in any state or federal court of competent jurisdiction. In 2010, the Bank filed suit in Lowndes County and the defendants moved to transfer venue to Glynn County under the forum selection clause in the Amended and Restated Promissory Note. The trial court granted the motion and the Bank appealed.

The Court of Appeals (Mikell, Miller, Blackwell) unanimously reversed the trial court ruling. After a review of the doctrine of forum non conveniens, the Court of Appeals found that the trial court erred by relying solely on the venue clause in the Amended and Restated Promissory Note because it was subject to the document protocols of the original Loan Agreement. Thus, the Lowndes County court was a proper venue and the trial court erred by transferring venue to Glynn County.

On January 22, 2013, the Supreme Court of Georgia unanimously denied the petition for certiorari (Blackwell, disqualified).

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